Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 and issued 12 orders to the society relating to compliance under the Ontario Occupa- tional Health and Safety Act. By September, the society still hadn't complied with the or- der to have a joint health and safety commit- tee, so a forum was set for workers to choose one. Podobnik was elected to be the worker member on the committee. An industrial hygienist also inspected the basement book room and ordered the air quality be improved. On Oct. 18, 2015, the one employee Podobnik supervised was re-assigned to the trucking department to help pick up and de- liver donations, which happened occasion- ally as necessary. is left Podobnik alone to process books, but the day before a large do- nation of 30 boxes of books had arrived and Podobnik felt this was an "insurmountable task" and a safety hazard. Podobnik contact- ed the assistant manager and said she couldn't process so many books and she would call the Ministry of Labour if necessary. e assistant manager issued her a dis- ciplinary warning, as Podobnik was raising her voice and refusing to process the books alone. When she discussed it with the soci- ety's executive director, he told her if she felt the work was unsafe, she should just quit. Podobnik replied that he was trying to in- timidate her. e next day, the executive director an- nounced the society would be restructuring and expanding. e basement book room was being amalgamated with the house- wares department and Podobnik would no longer be a supervisor, instead reporting to the manager of housewares. Podobnik had no warning of the change and felt shamed at her public demotion. On Nov. 10, the society terminated Podob- nik's employment, stating that her position had become redundant in the restructuring and expansion. It claimed it only needed one employee for the book room, and the em- ployee that had worked under Podobnik was being retained because of his lower salary. e society provided Podobnik four weeks of termination pay. Podobnik filed a labour complaint, claim- ing she was dismissed because of her health and safety complaints, initially to the society and then to the Ministry of Labour. e board found that the evidence indicat- ed the society didn't take Podobnik's health and safety concerns seriously and the ex- ecutive director thought her refusal to work when she had the large donation of books to process was frivolous and unfounded. How- ever, management's opinion didn't matter if Podobnik's work refusal was in good faith, which the board believed it was. Since the board found Podobnik's con- cerns were legitimate and she honestly be- lieved in them, the disciplinary warning she was given was a violation of the Occupation- al Health and Safety Act's prohibition of re- prisals and the society should have inquired into the matter, said the board. e board also found that the society's stated reason for dismissing Podobnik — restructuring — was called into doubt by the fact she had been involved in health and safety complaints to the Ministry of Labour and a work refusal. is was emphasized by the fact the society also was expanding as part of its restructuring, which meant it was hiring more employees. Rather than of- fering Podobnik another position, the soci- ety dismissed her, leaving "no doubt in my mind that in terminating Ms. Podobnik on Nov. 10, 2015, the society engaged in repri- sal misconduct contrary" to the act, said the board. Since Podobnik didn't request reinstate- ment, the society was ordered to pay her compensation for lost wages, commission and benefits — minus the four weeks' termi- nation pay — as well as $3,500 in damages for emotional pain and suffering, for a to- tal of $15,062. See Leah Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc., (Sept. 27, 2016), No. 3211-15-UR, Kuttner- V-Chair (Ont. Lab. Rel. Bd.). Canadian Employment Law Today | 7 More Cases Worker complained to Ministry after employer did nothing « from NO CHARITY on page 1 Duty to mitigate means taking full-time hours A BRITISH COLUMBIA employer is not obligated to continue paying a dismissed employee during the notice period when the employee found a new full-time job but chose only to work part-time, the B.C. Su- preme Court has ruled. Sandra Schinnerl, 48, was hired as the director of international programs and ex- changes by Kwantlen Polytechnic Univer- sity — a university with campuses in Surry, Langley, Richmond and Cloverdale, B.C. — in April 2007. She started in August 2007. In October 2013, Schinnerl was granted a one-year education leave so she could pur- sue a PhD in immigration policy as it relates to international students. Her leave began on Sept. 1, 2014, and was extended until March 1, 2016, so she could complete her studies. Schinnerl returned to work on March 1, 2016, but was terminated due to restructur- ing. e university offered her continuation of salary and benefits for 10 months until Dec. 31, as long as Shinnerl conducted rea- sonable job searches. According to the termination agreement, if she found new employment with a "pub- lic sector employer" as defined in the B.C. Public Sector Employers Act that paid her less than her salary with the university, the university would continue to pay her the difference for the balance of the notice pe- riod. If she found employment with an em- ployer that wasn't a "public sector employer," Kwantlen would pay her a lump sum equal to 50 per cent of the remaining amount. Schinnerl applied for a position at another college that was a public sector employer that would pay her more than what she had earned with Kwantlen. She was hired with a start date of June 13, but she requested that she work only part-time until Dec. 31 so she could complete her doctoral studies. Kwantlen stopped paying Schinnerl the day she was hired by the other college, though her part-time earnings were less than her salary continuation payments. e university felt that Schinnerl was required to accept the full-time position to meet her duty to mitigate her damages, and working part-time for the first six months was her personal decision. e court noted that the 10-month notice period Kwantlen provided was appropriate for Schinnerl's service time and position. It was also clear that the new position was a full-time position and she just asked to work part-time while she completed her studies — which her new employer accommodated. e court found Schinnerl was entitled to negotiate a change to her new job, but it was a separate matter from her duty to mitigate. She accepted a full-time position, which fulfilled her duty to mitigate her dismissal damages, but asking Kwantlen to continue paying her during the notice period would be essentially "claiming that her former em- ployer should pay for part of her continuing education," the court said. e court found Schinnerl was entitled to consider her long-term interests, but Kwantlen wasn't obligated to pay for them, nor was it obligated to place her in "the best possible position in relation to her long-term career objective following her dismissal." e court determined that Kwantlen's ob- ligation ended the day she started her new position as Schinnerl had the opportunity to work full-time abut chose not to for personal reasons. See Schinnerl v. Kwantlen Polytech- nic University, 2016 CarswellBC 3074 (B.C. S.C.).

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